Fugate v. Taulbee Lumber & Coal Co.

Opinion op the Court by Chiep Justice Fulton Reversing. In this action filed by the appellee, Taulbee Lumber & Coal Company, against the appellants, Flora Fugate and her husband, it was alleged in the petition that the defendants were indebted to the plaintiffs in the sum of $153.91 for lumber sold and delivered and to be used in making improvements on a described house and lot in the city of Hazard owned by the defendants. There was no allegation that a material man’s lien had been perfected by compliance with section 2468' of the Kentucky Statutes (now KRS 376.080), but a lien was claimed by reason of the furnishing of the material. *423 Default judgment was rendered for tbe amount sued for, adjudging tbe plaintiff a lien on tbe house and lot and ordering a sale to satisfy tbe lien. Tbe property was sold and purchased by tbe plaintiff for tbe amount of tbe debt, interest and costs. Beport of sale was filed and confirmed and deed was executed to tbe purchaser. This appeal is from tbe judgment ordering tbe sale. The contention is that tbe judgment was erroneous in so far as it granted a lien on the property and ordered it sold because tbe petition failed to state facts sufficient to warrant tbe judgment in this particular. This court bas jurisdiction of tbe appeal although the amount of tbe judgment is less than $200, since it involves tbe right to enforce a statutory lien (KBS 21.060). There was no allegation of a contractual lien and it is apparent that tbe judgment awarded a material-man’s lien, a statutory lien. That tbe judgment was erroneous in awarding tbe ben on tbe property and ordering it sold in satisfaction thereof is manifest. This court bas consistently held that a materialman acquires no lien on property for which materials are furnished unless bis right to the ben is completed and perfected by filing in the office of tbe clerk of tbe county court tbe statement required by section 2468. Tbe most recent cases so bolding are Woods v. Constantine, 217 Ky. 195, 289 S. W. 282, and Powers v. Brewer, 238 Ky. 579, 38 S. W. (2d) 466. Tbe judgment is reversed to tbe extent that it granted a ben and ordered the property sold, with directions to set it aside to that extent.